IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: AMERICAN INVESTORS : CIVIL ACTION

LIFE INSURANCE CO. ANNUITY :

MARKETING AND SALES PRACTICES : NO. 05-md-1712

LITIGATION : MDL DOCKET NO. 1712

 MEMORANDUM

McLaughlin, J. July 10, 2013

 The Aviva defendants1 move the Court to enforce its final

order and judgment as it relates to claims for restitution in a 

pending civil enforcement action commenced by the Commonwealth 

of Pennsylvania. The Attorney General of Pennsylvania has 

initiated a lawsuit in state court, alleging that the Aviva 

defendants violated the state‟s Unfair Trade Practices and 

Consumer Protection Law. The Aviva defendants now seek an 

injunction against two named plaintiffs and settlement class 

members, and all persons acting or purporting to act on their 

behalf, from seeking or receiving restitution or monetary relief 

from the defendants in connection with the Attorney General‟s 

lawsuit. The Court will grant the defendants‟ motion.

 

1 The Aviva defendants are: AmerUs Group Company and AmerUs 

Annuity Group Company (now collectively known as Aviva USA 

Corporation) and American Investors Life Insurance Company 

(now known as Aviva Life and Annuity Company).
2

I. Factual Background

Defendants‟ motion pertains to this Court‟s supervision 

and approval of a settlement agreement in the instant action, a

consolidated multidistrict litigation involving six putative 

class action lawsuits. In re Am. Investors Life Ins. Co. 

Annuity Mktg. & Sales Practices Litig. (In re Am. Investors), 

263 F.R.D. 226, 228-29 (E.D. Pa. 2009). In brief, In re Am. 

Investors involved defendants‟ marketing and sale of long-term

deferred annuity products. The class action plaintiffs alleged 

that defendants perpetrated a scheme to sell such products to 

senior citizens by misrepresenting and omitting information on 

the nature of the investments, inducing them to buy unnecessary 

estate planning instruments and annuities. Id. at 230. The 

oldest of these cases has been pending before the Court since 

2004. Id.

A. Terms of the Stipulation of Settlement

On July 16, 2009, after five years of litigation, 

plaintiffs filed their unopposed motion for preliminary approval 

of a class-wide settlement, certification of the class, and an 

order directing issuance of notice to the class. Their motion 
3

included a stipulation of settlement and a proposed form of 

class notice. Id. at 229.

The stipulation of settlement defined the class as “[a]ll 

persons and entities that purchased Company Annuities issued 

during the Class Period and all persons and entities to which an 

ownership interest in such Company Annuities was subsequently 

assigned or transferred, or that otherwise held any interest as 

an Owner in such Company Annuities, during the Class Period . . 

. .” Id. at 230. In total, the settlement class consisted of 

over 387,000 individuals.2 Id.

Section X of the stipulation of settlement, entitled 

“Release and Waiver,” explained the obligations taken on by the 

class members as part of the settlement. In relevant part, it 

states:

[T]he Named Plaintiffs and all Class Members, on 

behalf of themselves . . . and any other person or 

entity purporting to claim on their behalf, hereby 

expressly and generally release and discharge the 

 

2 The class included the thirty-six individuals who are the focus 

of the instant motion. See Herman Add‟l Decl. ¶ 9, attached to 

Def. Mot. for Leave to File Add‟l Decl., exh. 1 (Docket No. 555-

1, at 4). Included among the thirty-six individuals are two

named plaintiffs, Beryl and Charlotte Price, who received 

incentive awards beyond their settlement amount. Id.; see also

In re Am. Investors, 2006 WL 1531152, at *1-2 (Jun. 2, 2006).
4

Releasees3 from any and all causes of action, claims, 

allegations of liability, damages, restitution, 

equitable, legal and administrative relief, interest, 

demands or rights whatsoever, including, without 

limitation, for all claims of actual monetary damages, 

for claims of injunctive or equitable type of relief, 

and for claims of mental anguish and/or punitive or 

exemplary damages, whether such claims are based on 

federal, state, or local law, statute, ordinance, or 

regulation (including, without limitation, federal or 

state insurance laws or regulations, RICO type laws, 

and securities laws or regulations), contract, common 

law, or any other source, relating to any Company 

Annuities and that were or could have been asserted 

against Defendants in the Complaint or any other 

complaint encompassed in the Action . . . or relating 

in any way to the Released Transactions,4 and whether 

 

3 Section X of the stipulation defined “Releasees” as 

“[i]ndividually and collectively, the Defendants and Other 

Defendants and the Defendants‟ and Other Defendants‟ respective 

past, present, and future parent companies, subsidiaries, 

affiliates, predecessors, successors and assigns . . . .” Id.

at 247.

4 Section X of the stipulation defined “Released Transactions” 

as:

(a) the design, development, marketing, offer, 

solicitation, application, underwriting, acceptance, 

issuance, sale (including, without limitation, in 

connection with the issuance of a Company Annuity as a 

replacement for a non-Company annuity or another 

Company Annuity), presentation, illustration, 

projection, purchase, operation, performance, interest 

crediting, charges, administration, servicing, 

retention, and/or replacement (by means of surrender, 

partial surrender, loans respecting, withdrawal and/or 

termination of any annuity) of or in connection with 

(1) the Contracts or (2) any annuity sold or to be 

sold or offered in connection with, or relating in any 

way directly or indirectly to the sale or solicitation 

of, the Contracts, or external or internal 

replacements of annuities issued by the Companies, (b) 
5

or not brought directly, indirectly, on a 

representative basis, or otherwise, including, but not 

limited to, actions brought on behalf of the Named 

Plaintiffs and/or Class Members by any state or 

federal government officials or agencies.

Id. at 248. In addition, Section X stated that plaintiffs 

agreed not to “institute, maintain, assert, join, or participate 

in, either directly or indirectly” any action against the 

Releasees “asserting causes of action, claims, allegations of 

liability, damages, restitution, injunctive, equitable, legal or 

administrative relief, interest, demands or rights” that were

related to the facts alleged in the Complaint or related “in any 

way” to the Released Transactions. Id. at 248-49.

B. Notice to Class Members

The Court preliminarily approved the settlement and class 

notice on July 28, 2009. To disseminate the stipulation of 

settlement, the class notice, and the date of the fairness 

 

the marketing, sale, delivery, and/or performance of 

any products, plans, or services in connection with, 

or relating to or allegedly relating to, the 

marketing, purchase, or sale of a Contract, and (c) 

any and all matters concerning or relating to this 

Settlement (including, without limitation, the award, 

election, and/or implementation of any Settlement 

Relief with respect to a Contract).

Id. at 247-48.
6

hearing to the putative class members, the parties retained the 

services of Rust Consulting, Inc. On August 28, 2009, Rust 

Consulting disseminated copies of the Court-approved class 

notice to the last known addresses of the class members via 

first-class, postage prepaid mail. Id. at 229; 232-33. A total 

of 13,265 Pennsylvania residents received notices in their 

capacity as putative class members; only 32 submitted a request

for exclusion from the class. Lake Decl. ¶ 9-11, attached to 

Def. Mot. to Enforce (Docket No. 547-3, at 3-4).

Multiple times throughout the class notice, class members 

were informed that if they did not exclude themselves from the 

class, they could not later bring suit against the defendants. 

For example, the notice stated that “Unless you properly exclude 

yourself, you are staying in the Class, and that means: (1) that 

you can‟t sue, continue to sue, or be part of or receive any 

benefits in or from any other lawsuit, arbitration, 

administrative or regulatory proceeding, order, or other legal 

proceeding anywhere against the Defendants . . . .” In re Am. 

Investors, 2011 WL 6046737, at *2 (Dec. 6, 2011).

Among those who were noticed through this process are the 

thirty-six individuals, including the two named plaintiffs, who 

are the focus of the instant motion. Rust Consulting did not 
7

receive any notification from the Postal Service indicating that 

the mail was not delivered to those thirty-six individuals.

Indeed, none of the thirty-six individuals opted out of the 

settlement. Lake Decl. ¶ 13-15.

C. Fairness Hearing

On November 6, 2009, the Court held a fairness hearing on 

the proposed class settlement, at which counsel for plaintiffs 

and defendants spoke on behalf of their clients. No class 

members appeared at the hearing. In re Am. Investors, 263 

F.R.D. at 233-34. 

Two state government entities participated in the 

fairness hearing process, including counsel for the Pennsylvania 

Attorney General‟s Office, who submitted an amicus brief in 

advance of the hearing and appeared at the actual hearing. Id.

at 234, 241. The amicus brief objected to the settlement to the 

extent that it included within its Releasees the “agents” of the 

named Defendants; it was concerned that the term “agents” may be 

interpreted too broadly. It also objected to the extent that 

the settlement “would impede or impair the Commonwealth‟s 

statutory right to seek relief on behalf of affected consumers 

or otherwise limit class members or Plaintiffs, or any other 
8

consumer for that matter, from „participating‟ in the ongoing 

litigation, including, without limitation, by witness 

testimony.” Docket No. 436, at 7-8. It stated, “[t]he 

Commonwealth must be free to vindicate the public interest by 

all means necessary in the ongoing litigation and to be assured 

that no future arguments will be made, based on the terms of 

this release, which would impact its litigation in an adverse 

way.” Id. at 8.

After the hearing, the Court certified the class and 

approved the settlement, holding that the class and settlement 

met the requirements of Fed. R. Civ. P. 23(3) and the United 

States Constitution. 263 F.R.D. at 243. Incorporating language 

from the stipulation of settlement into its final order and 

judgment, the Court entered a permanent injunction that barred

class members from filing, prosecuting, and maintaining a 

lawsuit that was based on or related to the same causes of 

action. Id. at 250-51.

As to the objections of the Pennsylvania Attorney 

General, the parties worked together to amend the release 

language to permit class members to cooperate with pending 

regulatory investigations. Id. at 242. As a result, the order

stated that “[n]othing in this Order shall be construed to 
9

impede, impinge, impair, or prevent in any fashion any Named 

Plaintiff and/or Class Member from responding to, cooperating in 

or communicating with any state, federal or local government 

body or official or any attorney representing a private party, 

including, without limitation, appearance as a witness for 

testimony or the production of information.” Id. at 251. 

However, the Court reserved judgment as to whether any 

claims brought by regulators to enforce their own law 

enforcement powers would be barred by the settlement. Id. at 

234. It held that “[t]he defendants in this action are entitled 

to a release of all claims held by class members in exchange for 

providing the relief outlined in the settlement. The attorneys‟ 

general law enforcement powers are not claims the plaintiffs 

have, and as such, the plaintiffs do not release any of these 

claims.” Id. at 241.

Finally, the Court‟s order retained jurisdiction as to 

all matters relating to the administration, consummation, 

enforcement and interpretation of the stipulation of settlement 

and final order and judgment. Id. at 251.
10

D. Pennsylvania Attorney General‟s Civil Enforcement

Proceeding

In addition to the instant case, the Aviva defendants 

have also been involved in a pending state civil enforcement 

action initiated by the Pennsylvania Attorney General. This 

lawsuit, which was filed in the Commonwealth Court of 

Pennsylvania, is captioned Commonwealth of Pennsylvania v. 

Estate Planning Advisors Corp., et al., 740 M.D. 2004 (“Attorney 

General Lawsuit”). 

The Attorney General Lawsuit was filed on or about 

October 2004. In total, its amended complaint consists of seven 

counts against sixteen defendants. It alleges that the 

defendants, who were in the business of “promoting and selling 

estate planning services and products,” utilized improper 

marketing techniques in targeting senior citizens to buy their 

products. Attorney General Lawsuit Am. Compl., attached to Def. 

Mot., Herman Decl., exh. 1 (Docket No. 547-6).

The claims against the Aviva defendants focus on the 

impropriety of the marketing and sale of Aviva deferred 

annuities. The Attorney General has asserted that the Aviva 

defendants violated the Pennsylvania Unfair Trade Practices and

Consumer Protection Law (Count III) and the Charities Act and 
11

Judicial Code (Count VII). Specifically, the complaint alleged

that the Aviva defendants improperly advised consumers regarding 

revocable living trusts and other estate planning strategies 

under the pretense of being “Certified Senior Advisors” or other 

“expert” estate planners. Id. at 20. It also alleged that the 

defendants‟ representatives improperly used “misrepresentations, 

omissions and scare tactics . . . with respect to the sale of 

annuity contracts and Qualified Charitable Gift Annuity 

Contracts sold to Pennsylvania consumers.” Id. at 35.

The state trial court‟s scheduling order set discovery to 

be completed by April 8, 2013. As part of discovery production, 

the Aviva defendants received from the Commonwealth two letter

templates, dated March 8 and March 25, 2013, which had been 

utilized by the Attorney General to prepare letters to be mailed

to individuals in Pennsylvania with whom the Office had contact 

in the course of its investigation and subsequent trial 

preparation. The letters informed its recipients that in 

addition to civil penalties and injunctive relief, the Attorney 

General was also seeking “restitution in our lawsuit on behalf 

of affected consumers, as authorized by the Consumer Protection 

Law.” If the recipients wished to submit a claim for 

restitution in the Attorney General Lawsuit, the letter 
12

instructed them to complete and return an enclosed “Affidavit 

and Restitution Claim Form” (“Claim Form”). Herman Decl., exh. 

C (Docket No. 547-8).

The enclosed Claim Form asked for basic identifying 

information of the potential claimants. It also asked whether 

they purchased living trusts or annuities and its cost. 

Finally, it asked claimants to “verify” that they had not 

“received credit, reimbursement, or refund of the above amounts 

in any form.” This statement was made “subject to the penalties 

of 18 Pa. Cons. Stat. § 4904. Id., exh. F (Docket No. 547-11).

The defendants eventually became aware that thirty-six

policy owners of American Investors Life Insurance Company or 

AmerUs Life Insurance Company annuities, or persons acting on 

behalf of those owners, returned signed Claim Forms expressing a 

claim for restitution. Herman Decl. ¶ 12-13; see, e.g., id., 

exh. F. These restitution claimants are named plaintiffs or 

class members of the instant case and settlement. Each had been 

sent a stipulation of settlement and class notice by Rust 

Consulting, and none had asked to be excluded from the class. 

Lake Decl. ¶ 13.

Upon learning of the claims for restitution by settlement 

class members, the Aviva defendants filed the instant motion and 
13

a supplemental, related motion in front of this Court. It 

sought an order enjoining subject class members, and all persons 

acting or purporting to act on their behalf, from seeking or 

receiving restitution or monetary relief from the Aviva 

Defendants in connection with the Attorney General Lawsuit.5 

Although no class members opposed the motion, the Attorney 

General filed a brief in opposition on May 17, 2013 and 

requested that the Court hear oral argument on the motion. The 

Court held oral argument on June 20, 2013.

II. Analysis

District courts are authorized under the All Writs Act to 

“issue all writs necessary or appropriate in aid of their 

respective jurisdictions and agreeable to the usages and 

 

5 The Aviva defendants‟ original motion had identified thirtyfour “subject class members” who were American Investors Life 

Insurance Company or AmerUs Life Insurance Company annuity 

policy owners and had returned signed Claim Forms to the 

Attorney General‟s Office. Herman Decl. ¶ 12. Their 

subsequently-submitted motion for leave to file an additional 

declaration added two other individuals, increasing the total to 

thirty-six. Supp. Herman Decl., exh. 1, at 3 (Docket No. 555-1, 

at 3-4). Their proposed order is not limited only to those 

thirty-six class members, but also includes “any other 

plaintiffs or settlement class members who apply to receive 

additional restitution” in the Attorney General Lawsuit. Id., 

exh. 2, at 1.
14

principles of law.” 28 U.S.C. § 1651. In the context of state 

court proceedings, district courts are limited by the AntiInjunction Act, which states that federal courts may only grant 

injunctions to stay state court proceedings under three 

circumstances: 1) with Congressional authorization; 2) when the 

injunction is needed to aid the district court‟s jurisdiction; 

and 3) when the injunction is needed to protect or effectuate 

its judgments. 28 U.S.C. § 2283.

The Third Circuit has held that a district court may 

enjoin state court proceedings to protect its jurisdiction when 

it is “entertaining complex litigation, especially when it 

involves a substantial class of persons from multiple states, or 

represents a consolidation of cases from multiple districts.” 

In re Diet Drugs Prod. Liab. Litig., 369 F.3d 293, 306 (3d Cir. 

2004) (internal citations omitted); see also In re Prudential 

Ins. Co. of Am. Sales Practices Litig., 314 F.3d 99, 104-05 (3d 

Cir. 2002) (stating that district courts overseeing complex 

federal litigation “are especially susceptible to disruption by 

related actions in state fora.”).

Here, the Court has authority to grant the instant motion

in order to aid in its jurisdiction. In its final order, the 

Court retained its jurisdiction “as to all matters relating to 
15

the administration, consummation, enforcement and interpretation 

of the Settlement Stipulation and of this Final Order and 

Judgment.” 263 F.R.D. at 251. The class members‟ claims for 

restitution are related to events covered by the settlement‟s 

release and waiver, and as such, the instant motion is related 

to the enforcement and interpretation of the settlement. See 

also In re Am. Investors, 2011 WL 6046737, at *4-5 (Dec. 6, 

2011) (finding jurisdiction to grant motion to enforce against a 

class member who had instituted a Florida state court action).

The instant case is a complex litigation that involves a 

consolidation of cases from multiple districts. The parties 

have spent years navigating the substantial interests involved,

and the Court has expended significant effort in overseeing the 

settlement process. If a state court were to now issue 

additional damages for certain class members covered by the 

settlement‟s terms, such a holding would disrupt this Court‟s 

jurisdiction over the administration of the settlement, and 

would impair the federal court‟s flexibility and authority to 

interpret its order and judgment. In re Diet Drugs, 369 F.3d at 

306; see also In re Prudential, 314 F.3d at 105 (“Permitting 

continued litigation of these claims would „unsettle‟ what had 
16

been thought to be settled, and would disrupt carefully 

constructed procedures for individual dispute resolution.”).

It is clear that the class members‟ restitution claims in 

the Attorney General Lawsuit are based on transactions that were 

covered in the terms of the federal settlement. The Attorney 

General‟s complaint alleges that the Aviva defendants violated 

certain state laws in their marketing, solicitation, and sales 

of Aviva deferred annuities. This falls squarely within the 

scope of the settlement, under which class members discharged 

defendants from “any and all causes of action,” whether such 

causes of action “are based on federal, state, or local law, 

statute, ordinance, or regulation,” “relating to any Company

Annuities and that were or could have been asserted against 

Defendants,” or “relating in any way to the Released 

Transactions.” In re Am. Investors, 236 F.R.D. at 248-49. 

The class members were properly advised of the 

consequences of remaining in the settlement class.

6 See In re 

 

6 The Court has previously held that the class notice constituted 

the best practicable notice under the circumstances; was 

reasonably calculated to apprise settlement class members of 

their rights and the binding effect of the orders and judgment 

in this action; complied with Fed. R. Civ. P. 23(e); and 

satisfied the requirements under the United States Constitution 

and other applicable laws. 236 F.R.D. at 246-47. The Attorney 
17

Am. Investors, 2011 WL 6046737, at *2 (settlement notice 

informed class members that “Unless you properly exclude 

yourself, you are staying in the Class, and that means: (1) that 

you can‟t sue, continue to sue, or be part of or receive any 

benefits in or from any other lawsuit . . . .”). They were

given an opportunity to contest its terms at the fairness 

hearing, and they did not choose to object. In addition, the 

Claim Form distributed by the Attorney General required that 

claimants verify that they had not “received credit, 

reimbursement or refund of the above amounts in any form,” a 

second reminder to restitution claimants that such obligations 

existed. Herman Decl., exh. F.

Under these facts, if the class members were to receive 

restitution from the Attorney General proceeding, such receipt

would violate the terms of the federal settlement. The Court 

thus has jurisdiction under the All Writs Act to prevent this 

from occurring. 

In its opposition, the Attorney General acknowledged that 

its state law claims against the Aviva defendants have the same 

nucleus of facts as those involved in the federal case and 

 

General has not questioned the propriety of the class notice. 

Tr. Hr‟g 6/20/13 40:13-41:6.
18

subsequent settlement. However, it disputed that the two 

proceedings are parallel, and that the restitution at issue 

should be enjoined, because it argued that the state court case 

was undertaken by the government, not by a private actor. 

Specifically, the Attorney General argued that it 

initiated the state court lawsuit on behalf of the public and in 

order “to protect the citizenry.” Opp. at 4. Its argument is 

premised upon its powers under the Unfair Trade Practices and

Consumer Protection Law, 73 P.S. § 201-1, et seq. (“Consumer 

Protection Law”). Under 73 P.S. § 201-4, the Attorney General 

is vested with the authority to bring an action “in the public 

interest” against any person engaging in practices declared 

unlawful by the Consumer Protection Law, and it may seek three 

types of remedies: injunctive relief, civil penalties, and 

restitution. 73 P.S. § 201-4.1, 201-8(b); see also Commonwealth 

v. Ted Sopko Auto Sales and Locator, 719 A.2d 1111, 1114 (Pa. 

Commw. Ct. 1988). According to the Attorney General, because 

the restitution is sought by the Commonwealth in accordance with 

its stated powers under the Consumer Protection Law, and because 

the Commonwealth was not a member of the settlement class, such

relief was not – and could not have been – released by the 

federal settlement. E.g., Commodity Futures Trading Comm‟n v. 
19

Commercial Hedge Servs., Inc., 422 F. Supp. 2d 1057, 1060 (D. 

Neb. 2006) (refusing to enjoin federal administrative agency 

from seeking restitution for settlement class members because 

the agency is seeking to protect the public interest and is not 

bound by private agreements).

The Court agrees that, in general, there is a difference 

in a settlement‟s preclusive effect on a lawsuit initiated by a 

private party and a lawsuit initiated by a government agency. 

However, the Court is guided by Supreme Court and Third Circuit 

precedent in holding that this difference is not dispositive 

here.

In EEOC v. Waffle House, Inc., the Supreme Court 

considered whether a mandatory arbitration clause in a former 

employee‟s employment contract barred the EEOC from pursuing 

victim-specific judicial relief on behalf of the employee. The 

Court held that, in light of the detailed enforcement scheme 

contemplated by Congress in enacting the ADA, such relief was 

available to the EEOC. 534 U.S. 279, 296 (2002). However, it 

also held that certain conduct of the former employee “may have 

the effect of limiting the relief that the EEOC may obtain in 

court.” Id. As an example, it referred to a situation in which 

the employee had accepted a monetary settlement from the 
20

defendant. In that case, “any recovery by the EEOC would be 

limited accordingly,” because “it goes without saying that the 

courts can and should preclude double recovery by an 

individual.” Id. at 296-97 (internal citations omitted).

The Waffle House Court‟s previous-settlement example was 

actually a reference to the facts and holding of a Third Circuit 

case, EEOC v. U.S. Steel Corp., which the Court cited with 

approval. In U.S. Steel, the EEOC filed an age discrimination 

action against the defendants, seeking, among other remedies, 

individual retroactive relief for all qualified former 

employees. 921 F.2d 489, 495 (3d Cir. 1990). The EEOC‟s action 

resulted in a judgment against the defendants. Id. at 491. 

Prior to the initiation of the EEOC case, however, a number of 

employees had filed their own lawsuits, some of which had 

settled and some of which lost at trial. The question before 

the Third Circuit was whether res judicata barred the award of 

individual relief for the former employees who had previously 

litigated their ADEA claim and suffered an adverse final 

judgment.7 Id. at 491-92.

 

7 The Third Circuit did not consider whether those individuals 

who had settled their discrimination claims could seek 

additional relief because the EEOC seemed to have conceded that 

matter. However, it noted that “[o]ther circuits have held that 
21

The Third Circuit held that, under the ADEA‟s enforcement 

scheme, claim preclusion applied because the EEOC was in privity 

with the private plaintiffs.8 In making this conclusion, the 

court rejected the EEOC‟s argument that it was protecting a 

broader independent public interest “different from that of an 

individual grievant.” Id. at 496. The court noted the 

“accurate and important” role of the EEOC in protecting the 

public interest, and it acknowledged the delicacy of determining 

whether government agencies are representing private 

individuals. However, it distinguished between the EEOC‟s role 

in protecting the public interest and its role in vindicating 

specific private claims. “When the Commission seeks 

individualized benefits under the ADEA for particular grievants, 

as it did in this case, the Commission functions to that extent 

as their representative, and the doctrine of representative 

claim preclusion applies.” Id. Thus, it held that individuals 

who fully litigated their own claims under the ADEA are claim 

 

an individual who settles a discrimination claim may not obtain 

additional relief in an EEOC action asserting the same claim.” 

See id. at 492, n.3 (citing cases).

8 Although U.S. Steel is not binding on this case, in that it 

focuses on the particular enforcement scheme of the ADEA, the 

Third Circuit‟s analysis with regard to the EEOC‟s “public 

interest” argument gives the Court guidance in addressing the 

Attorney General‟s similar contentions.
22

precluded from obtaining individual relief in a subsequent EEOC 

action based on those claims. Id. at 496-97.

Similar concerns are triggered here. Under the Consumer 

Protection Law, a court “may in its discretion direct that the 

defendant or defendants restore to any person in interest any 

moneys or property, real or personal, which may have been 

acquired by means of any violation of this act.” 73 P.S. § 201-

4.1 (emphasis added). The law is clear – and the parties agree 

– that the money ultimately belongs to the claimant individuals, 

not the government. Thus, even though the restitution is sought

by (and arguably in the name of) the Attorney General, it does 

so “on behalf of affected consumers” who are also class members,

raising res judicata concerns as discussed in U.S. Steel. See

Herman Decl., exh. C.

Moreover, at oral argument, counsel for the Attorney 

General reserved its right to seek restitution equaling the 

total amount of the class members‟ annuity losses. Tr. Hr‟g 

6/20/13 29:6-30:25. Because the class members have already 

received certain sums in settlement, restitution above that sum 
23

could very well result in double recovery in violation of the 

Supreme Court‟s holding in Waffle House.

9 

It is important to recognize that the Attorney General 

still has at its disposal several other forms of remedies that 

it may pursue through the course of the trial and afterward. 

Indeed, under the Consumer Protection Law, the Attorney General 

may still seek injunctions and civil penalties against the 

defendants. 73 P.S. § 201-4, 201-8(b). This is markedly 

different from the posture of Spinelli v. Capital One Bank, in 

which defendants sought to enjoin the attorney generals from 

prosecuting their cases completely. No. 08-132, 2012 WL 

3609028, at *1 (M.D. Fl. Aug. 22, 2012). Thus, although the 

 

9 The Attorney General argues that an injunction is premature at 

this point because the Commonwealth Court can, at a later date, 

award amounts of restitution that satisfy the Waffle House

reasoning; put another way, it is up to the second court, not 

this one, to fashion an equitable remedy that does not result in 

double recovery. Where, as here, the class settlement is 

complicated and difficult to quantify, the Attorney General‟s 

proposed solution is impracticable. The Court sees no reason to 

put upon the Commonwealth Court the task of somehow calculating 

a cap on restitution that protects against double recovery, 

especially when the calculation is primarily based upon a 

settlement that is within the purview and jurisdiction of this 

Court. In addition, insofar as the Attorney General has 

indicated that it will seek as restitution the full amount of 

the loss (and not the difference between the full amount and the 

amount awarded in settlement), its recommendations will likely 

offer little guidance in making this calculation.
24

remedies provided to the Attorney General under the Consumer 

Protection Law are constrained by the Court‟s holding, they are 

not completely precluded, and certainly not beyond that 

anticipated by the U.S. Steel court.

The Court must weigh the Attorney General‟s interests 

against the multiple other interests at stake, most importantly 

those of the parties to the settlement. The settlement was the

product of years of complex negotiation by the parties. It was 

the subject of careful scrutiny by the Court. The class members 

were given many opportunities to voice their objections or 

otherwise be excluded from the class, but they chose not to do 

so. As such, the terms of the settlement, as it was proposed 

and assessed back in 2009, is exactly what they bargained for.

The Court will not allow the class members, or the 

Attorney General acting on their behalf, to demand more money 

from the defendants at this juncture. These claims for 

restitution are in effect post-negotiation “collateral attacks” 

on the settlement, and, given the thousands of potential class 

members who could have submitted a claim, the potential for 

disruption to the settlement is great. Indeed, if the Court 

were to allow such claims to go forth, the defendants would no 

doubt be reluctant to enter into settlement agreements in the 
25

first instance. In the words of the Third Circuit, “[a]llowing 

comprehensive settlements to be undermined in this way would 

undeniably deter similar settlements in the future.” In re 

Prudential, 314 F.3d at 105. To permit such claims not only

overwhelms the instant settlement, but would likely have a 

chilling effect on future settlement negotiations, as well. 

Thus, the Court is persuaded that the potential for 

disruption to the terms of the settlement overrides the Attorney 

General‟s need to pursue a third type of remedy in its state 

court proceeding. The Court will exercise its jurisdiction

under the All Writs Act and grant the injunction requested by 

the Aviva defendants. 

An appropriate order shall issue separately.